Issuing notice and posting the matter for hearing on 26 July, the apex court's bench said that nothing would happen before that.
Published Jul 21, 2023 | 4:48 PM ⚊ Updated Aug 07, 2023 | 1:37 PM
The Enforcement Directorate arrested V Senthil Balaji on 14 June.
The Supreme Court on Friday, 21 July, issued a notice to the Enforcement Directorate (ED) on Tamil Nadu Minister V Senthil Balaji’s plea against the Madras High Court order relating to the legality of his arrest and custodial interrogation by the anti-money laundering probe agency.
Issuing notice and posting the matter for hearing on 26 July, a bench of Justice AS Bopanna and Justice MM Sundresh said that nothing would happen before that.
Senthil Balaji has sought his release after being arrested in a money laundering case.
As the bench issued notice on Senthil Balaji and his wife Megala’s petition, Sibal urged the bench that during the pendency of the matter, the Tamil Nadu minister be protected from custodial interrogation.
In an apparent assurance that no precipitative steps would be taken, Solicitor General Tushar Mehta highlighted the order of the third judge of the high court bench.
Justice Karthikeyan directed the high court registry to place the matter before Chief Justice SV Gangapurwala to refer it to the same division bench to determine the date on which the ED could take custody of Senthil Balaji, who had undergone coronary bypass surgery, and to shift him from the hospital.
Now a Tamil Nadu minister without portfolio, Senthil Balaji and his wife Megala, in two separate petitions, challenged the high court order that upheld his arrest by the ED in a money laundering case.
Appearing for Senthil Balaji and Megala, senior advocate Kapil Sibal said that ED officials investigating the case were not the police, nor did they constitute a police station and that there was no provision for custodial interrogation under the Prevention of Money Laundering Act (PMLA).
He said that in the absence of ED officers being police, they could not take recourse to Section 167 of the Code of Criminal Procedure (CrPC) to seek 15 days custodial interrogation of an accused.
As it is, Sibal said that 15 days period, that ED asserted its right to subject Senthil Balaji immediately after his arrest, has expired as he has been in judicial custody since his arrest.
He referred to two top-court judgments on this score to buttress his point.
However, meeting the arguments advanced by Sibal, Solicitor General Tushar Mehta said that ED was seeking custodial interrogation of Senthil Balaji not as a matter of right but as its duty, since thousands of people have been cheated with an allure of jobs.
He said that if provisions of PMLA were not inconsistent with Section 167 of the CrPC, it could take recourse to it.
Solicitor General said that ED, which was an enforcing agency in respect of FERA (Foreign Exchange Regulation Act, now replaced by Foreign Exchange Management Act), acts as police including the Customs Act of 1962 and several other laws.
The hearing that lasted for some time witnessed both Sibal and Solicitor General engaged in witty exchanges.
As Solicitor General Mehta targeting Senthil Balaji said, “Sometimes stakes are so high, they prefer a bypass surgery to bypass the law.”
Getting back and hitting out at ED, Sibal said, “Sometimes stakes are so high, you bypass the law.”
At the conclusion of the hearing, Solicitor General said, “Enough of luxury by the accused”, Sibal retorted back saying, “Enough of buggery by the ED.”
Besides upholding the arrest of the minister, the high court had also held as valid his subsequent remand in judicial custody by a sessions court in the money laundering case arising out of the alleged cash-for-jobs scam in the state’s Transport Department when he was the transport minister.
The high court order upholding the arrest of the minister, and also holding valid his subsequent remand in judicial custody came following the decision of a third judge, Justice CV Karthikeyan holding that the accused had no right to frustrate the investigation.
Justice Karthikeyan directed the registry to place the matter before Chief Justice SV Gangapurwala to refer it to the same division bench to determine the date on which the ED could take custody of Senthil Balaji.
The matter travelled to Justice CK Karthikeyan — the third judge — following a split verdict on 4 July, by a division bench of Madras High Court comprising Justice Nisha Banu and Justice D Bharatha.
Justice Nisha Banu held that the habeas corpus plea filed (by Balaji’s wife Megala) for Senthil Balaji’s release was maintainable and should be allowed. Justice Banu further said ED was not entitled to get the custody of Senthil Balaji.
However, Justice D Bharatha Chakravarthy said the habeas corpus plea was not maintainable after the remand order was passed.
He said that no case was made out to show that Balaji’s remand was illegal. Justice Chakaravarthy also said that period of Balaji’s stay at the hospital, should be excluded from the ED’s custody period.
Soon after the split verdict, ED approached the top court urging that instead of letting the matter go to the third judge following the split verdict, it should take it upon itself to decide two “neat” questions of law arising in the case.
Whether habeas corpus petition could be entertained since Balaji was already rehabbed to judicial custody and can the ED be denied its right of subjecting Balaji to interrogation for two weeks?
However, a Supreme Court bench of Justice Surya Kant and Justice Dipankar Datta did not accept the ED plea.
Instead, it requested the Chief Justice of the Madras High Court to place the matter before the third judge “at the earliest” and further requested the third judge (before whom the matter will now be placed) to decide the legal issues arising in the case “as early as possible”.
The bench had told the Solicitor General Tushar Mehta who appeared for the ED that they would like to have the benefit of the final opinion of the High Court on the issue.
Before this, on 21 June, a vacation bench of the top court comprising Justice Surya Kant and Justice MM Sundresh had refused to interfere with the high court order entertaining a habeas corpus petition against the arrest of Senthil Balaji and permitting his treatment and surgery at a private hospital.
The ED arrested Balaji under the Prevention of Money Laundering Act (PMLA) in connection with the cash-for-jobs case. While being taken away, he complained of chest pain and was rushed to the Government Multi Super Specialty Hospital at Omandurar Estate in Chennai.
On 15 June, he was remanded in judicial custody by the principal sessions court and was allowed to continue his treatment at the hospital.
Meanwhile, Balaji’s wife Megala moved a habeas corpus petition in the Madras High Court and a division bench comprising Justices J Nisha Banu and D Bharatha Chakravarthy directed the minister be moved to a private hospital at his expense.
On 21 June, Balaji underwent a bypass surgery at the Kauvery Hospital. During his post-operative period, Balaji’s judicial custody was extended twice. The Principal Sessions Judge S Alli extended the custody via teleconferencing.
The case against Balaji dates back to November 2014, when the Metropolitan Transport Corporation advertised a recruitment drive to fill up various vacancies. Soon, allegations of corruption surfaced.
Balaji was then the transport minister in the AIADMK government. He joined the DMK only in 2018.
The first complainant was one Devasagayam, who claimed in October 2015 that he gave ₹2.6 lakh to Palani, a bus conductor, who promised his son a job in the state transport corporation.
Devasagayam claimed the conductor did not fulfil the promise nor returned his money. However, Balaji’s name did not figure in the complaint.
Balaji came into the picture when another man, Gopi, filed a similar complaint in March 2016.
The complainant said he had paid ₹2.4 lakh to two individuals, reportedly related to Balaji, for a conductor’s job. Gopi later approached the high court, accusing the police of inaction.
The court ordered the Crime Branch Assistant Commissioner to probe the case. The probe report, however, implicated only the 12 individuals mentioned in Devasagayam’s complaint. The report, submitted in 2017, excluded the minister and his relatives.
Meanwhile, more people came up with complaints. Transport Department employee V Ganesh Kumar alleged that the transport minister and three others had directed him to collect ₹95 lakh from job aspirants.
After he became a minister in the DMK-led government, his personal assistant Shanmugam and another man, R Sahayarajan, approached the victims with a compromise formula. However, the compromise move was seen as an admission of bribery, which caught the ED’s attention.
